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27 thoughts on “Going Pro-Rogue”

Around here, most pundits are up in arms … but then again that’s what they’re paid for.

The reaction among my friends and family ranges from irritation to indifference. From my understanding, people are more concern about the government taking what they see as a 3 month holiday than they are about the constitutional issue or the parliamentary precedent. I personally don’t give much credibility to the theory that politicians are on vacation when Parliament isn’t sitting. Nor do I give much credibility to the notion that the government cannot work on the economic recovery when Parliament is sitting, which was the official justification for prorogation.

The opposition did manage to pull an anti-prorogation rally day that attracted about 25 000 people around the country. The Tories did take a relatively significant hit in polls. My guess is that people who are making the biggest fuss about this weren’t going to vote for the Conservatives any way and that the media will progressively forget about it once they get an other squeaky toy to chew on.

For my part, I think this move was stupid and childish, but I’ll probably still vote for the Conservatives next time I’m called to the polls and I don’t think this prorogation business will be an issue next election.

Maybe Canadians reformers have been too busy with the anti-prorogation protests to look in on Fruits and Votes.

This was no ordinary annual prorogation. In that case it would have been shortly before the new throne speech, after the work of the session had been completed.

In this case, the last day before the Christmas adjournment the House of Commons had passed a motion by a three-vote margin requiring production of the documents requested by the parliamentary committee investigating the Afghan-detainee-transfer affair. The government apparently intended to refuse, which would put them in contempt of parliament. The Prime Minister had no plan for what would happen next. (If he has one now, he still has not said so.) So he prorogued in order for the government, he said, to “recalibrate” its agenda. A spate of recalibration and prorogation jokes followed.

But suspending parliament to escape a contempt motion looked like no joke. It looked like suspending democracy.

The January 23rd rallies in 60 cities were a very spontaneous event. They followed a spontaneous collection of Facebook protests which, in only a few days, resulted in a consensus on which Facebook site to join, which very soon had 25,000 members. The media took notice. In a couple more weeks it had 210,000 members. But no one knew whether this would translate into bodies on the streets. No one had ever seen rallies organized on Facebook. Even in our small town, when we expected 40 people to meet in front of the MP’s office, we got 150, most of whom had only read about it in the local daily the day before.

It all took the media and pollsters by surprise. Pollsters had predicted there would be no reaction, that Canadians wouldn’t care. That fed the protests: people wanted to show they did care.

The protests have continued. The Facebook group has grown to 225,647. Everyone has a Facebook page: Stephen Harper’s has 30,938 fans. As an offshoot of the Facebook protests, the page “Can this Onion Ring get more fans than Stephen Harper?” has 180,014 fans, while its francophone counterpart “Pour que ce stylo ait plus d’amis que Stephen Harper” has another 51,988.

Prorogation has almost completely died out in Australia, New Zealand and the Pacific, as described in a 2004 paper by the speaker of the WA legislative assembly. The Australian senate has a peculiar reaction to prorogations, they insist they are not effected by them and have made a point of meeting after a prorogation. Incidentally, the same paper tells us the clever New Zealanders have abolished the Speech from the Throne/Governor-General’s Speech in favour of an annual statement to parliament by the prime minister which is then subject to debate.

Didn’t Carmen Lawrence, as West Australian Premier, prorogue Parliament before the 1989 election to stop an Upper House committee inquiring into damaging allegations about the “WA Inc” scandals? (relying on memory as I can’t find a reference on Wikipedia).

No Right Turn reports that the Canadian disease is spreading with a prorogation until September in the Cook Islands. Clearly, the New Zealand practice of requiring a vote of the house before a dissolution or prorogation is better. In fact it is hard to see why prorogation is needed in a democracy at all.

I think, for better or worse, certain “Harper Precedents” are becoming more and more ingrained in Canadian politics as I see them. “The leader of the biggest party has a popular mandate to govern,” predates Harper and does make some sense, at least to me, but his corollary that a new party/coalition cannot replace it midterm is strange, at the least, and openly non-parliamentary at worst.

His other precedent is downright disturbing, “The Governor-General does whatever the PM says, no matter what.” I know that in ordinary circumstances, that isn’t true, and I do admit that since he clearly has parliamentary confidence at the moment, the GG probably doesn’t have any room to maneuver. But when a PM orders the GG to act in a way that shows he doesn’t have confidence, the GG should be able to at least slow things down. As I understand things, Harper prorogued parliament at least twice to avoid a coalition takeover/vote of no confidence. I would never imagine an Australian viceroy doing that.

On a similar note, is there any desire to simply abolish the power to prorogue? In this day and age, is there really any need to formally end parliamentary sessions as opposed to just recessing from time to time?

The notion that the governor-general can only listen to the prime minister long predates Harper, although it is unknown in the rest of the Westminster countries. Canada,for reasons unknown, has taken a very different direction.

I believe in New Zealand a majority vote of parliament is required to prorogue, meaning it cannot be used to block a non-confidence vote during minority government. I suppose it could be used in this scenario, though it would be extremely embarrassing for a government that has been consistently trailing the Liberals since they anointed Trudeau the Younger.

Abolishing prorogation outright seems to be the most desirable solution because it serves no function. Australian federal parliaments are prorogued only once, about 30 seconds before they are dissolved, and the parliament seems to be able to function effectively.

The main use of it here has been to try and stifle upper house inquiries. It is a distinctly ineffective tool because most upper houses disregard it and assert that their committees continue to function after a prorogation. Australian Senate Practice:

The Senate has not met during a period when the House was dissolved, but Senate committees have often done so, and have also often met after a prorogation. Proceedings at such meetings have included the hearing of evidence in public session. Committee reports have also been presented.

If the Senate were to meet after a prorogation, the business before the Senate would be the business pending at the prorogation, and it would be for the Senate to determine which business it should pursue. The Senate’s agenda, and those of its committees, are therefore regarded as continuing until the day before the opening of the next session.

Prorogation has been extensively abused in the South Pacific, most famously in the Cook Islands where their parliament was prorogued from February to September 2010.

It should be a fairly basic proposition that a parliament meets when it wants, not when the executive permits.

@13, Does New Zealand’s conventions allow for true minority governments? I know they have a lot of confidence and supply agreements, but hasn’t every government so far had a reliable pool of 61 or so votes that could be counted on when it came for a no confidence vote? Though I suppose we might not have any conventions to describe what happens when a small party withdraws from a coalition or confidence and supply agreement.

@14, While I agree that parliaments should be able to meet when they want, I believe there are one or two jurisdictions where a parliament meeting when it wants is interpreted as the parliament not having confidence in the government through ignoring the government’s schedule. Personally I think that takes fusion of powers and confidence a bit too far, but then again I would have no problem if a parliament passed a bill over the government’s objections without implicitly or explicitly declaring any confidence or lack thereof.

I actually believe I am incorrect on New Zealand needing a majority to prorogue parliament; I don’t know where I got that impression. Parliament is prorogued on the advise of the PM. However, as the entire 3-year term of parliament is a single session, prorogation would do absolutely nothing. Parliament is prorogued shortly before it is dissolved.

So far as I can tell, most NZ governments since 1996 have been “minority governments” in that less than half of the MPs were formal members of the coalition, but they all have had formal confidence and supply agreements with at least half the House. The only time this may not have been the case was after New Zealand First left the Fourth National Government coalition in 1998 until the dissolution of parliament in 1999.

The Westminster conventions are fairly well-established, except perhaps in Canada. I’m not aware that they are any different in New Zealand from the rest of the Westminster countries. What is happening is a disturbing tendency for parties of the right to allege conventions that don’t actually exist, Harper on coalitions and Abbot on minority governments.

Chris, your recollections on New Zealand minority governments are correct. Moreover, since 2005, there has developed the practice in each government of having minor partners be “ministers outside cabinet”. What this means is that they are not committed to voting with the cabinet on areas outside of their ministerial portfolio, but they are committed to vote with it on confidence and supply (in exchange for policy influence).

These arrangements have extended to very important portfolios, such as Peters (NZ First) being Foreign Minister and Dunne (United Future) being Revenue Minister. It is rather strange to think of such a minister being “outside cabinet”, but the arrangements seem to have worked quite well in providing the big party assurance of stability and the small one freedom to differentiate itself on matters outside its portfolios.

Interesting that we are all talking about United Kingdom, Canada, New Zealand, and Australia in not having codify the conventions of forming governments, and proroguing parliament when it suits the government.

How does prorogation in Ireland work considering that it’s Constitution goes into detail on government formation?

It’s hard to know whether the “Harper precedents” are being ingrained in Canadian constitutional conventions because there has not been another PM since Harper has used them. Another PM may simply put aside Harper’s behavior as anomalous. It would take a suicidal level of hypocrisy for Mulcair or Trudeau to utilize those precedents as PM given the amount of criticism they’ve leveled at Harper for his use/abuse of the executive’s power.

@20, If Harper can propose a coalition to bring down a Liberal minority government and then brand an all but identical attempt to bring down his minority government as unconstitutional, he has opened Canadian politics to a new round of limbo–how low can the politicians go.

Of course, hopefully, everyone will just ignore “President” Harper’s “precedents” and “conventions.”

Sir Ivor Jennings in The law and the Constitution gives the most widely-quoted test for a new convention:

We have to ask ourselves three questions: first, what are the precedents? Secondly, did the actors in the precedents believe that they were bound by a rule? And thirdly, is there a good reason for the rule? A single precedent with a good reason may be enough to establish a rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.

I submit the Harper claims have a way to go.

Contrast that with war votes in the UK. There are precedents from Iraq and now Syria. The Cameron-Clegg government told the parliament they believed themselves bound by the convention and the opposition agreed. The reason for the convention is self-evident.

Imagine Abbott and Harper debating the proper conventions of minority government at the next CHOGM. “The party with the most seats – or, in case of a tie, the incumbent government – is unconditionally entitled to govern for the entire five-year parliamentary term.” “No! If they have less than half the seats, they should resign and hand the baton over to the opposition leader – or at least call an early election – immediately if not sooner. And five years is far too long. Say no to even four-year terms!”

@24 My favourite pseudo-convention was George Brandis, now the federal attorney-general, arguing in 2010 that the winner of the 2PP should always form government. When the Coalition fell behind in the 2PP he quietly retired the argument.

A wiser politician than Julia Gillard might have put quite a lot of energy into arguing that the 2PP result meant that the electors had voted for a minority Labor government.

To some extent, there does seem to be a set of conventions in place to deal with minority governments, but of course some of these are not set in stone and some may be only recognized as “conventions” because I see what looks like a pattern.

—In the U.K., the incumbents are allowed to try to form a majority but are expected to step aside if they cannot

—In Canada, the party with the plurality of seats forms a government, unless or until a coalition with more seats forms. Harper doesn’t seem to recognize the second clause, but there are a few occasions where it happened, at least in Ontario.

—In New Zealand, confidence and supply agreements and the odd portfolio are expected to demonstrate majority support for a government lead by the plurality party

—In Australia, the adults (Labor at the federal level and in NSW and the Governor of Tasmania) ensure a stable government that can last a full term through various agreements while the Liberals define the situation in whatever way that would let them take power.

—In Scotland, a coalition can form or the largest party can make a go of things as a minority government. This may evolve the next time there is no majority party.

Those patterns do exist but they are not conventions and they are much more flexible than they appear. Julia Gillard,for instance, was widely criticised on her own side for negotiating with the Greens. The suggestion was to meet the parliament without any confidence and supply arrangements and defy the cross-bench to overthrow the government.

Some conventions are fundamental and some are not. You proposed in a previous thread that if the result was indecisive a new election could be called immediately. That advice has only been tendered twice, once in New Brunswick and once in Tasmania. Both times the Crown rejected the advice, and Crown rejection of advice is very rare in Canada. So the stats are fairly clear that there is a fundamental convention that a new parliament has the right to meet. The confidence convention is fundamental as well.

Put those two together and you have a fairly global explanation for Westminster government formation without needing to create a whole slew of new conventions.

You can have an argument about whether the other patterns you describe meet the three legs of the Jennings test. Personally I don’t think they do and I’d argue there is a lot more in common between the Westminster countries than first appears.

In 2008, for example, almost every scholarly commentator argued that the governor-general had the right to inform herself and the right to refuse the request for a prorogation. If they are right then Canada is not nearly the outlier that it seems.

Scotland and Wales are not Westminster systems. They have statutory rules for how to elect a first minister and how to dismiss them. We could call it the Canberra model because the ACT Self Government Act has similar rules.

I think relying on written rules is a whole lot more open, transparent and fair than faffing about with unwritten conventions that can be misrepresented by irresponsible leaders.

New Brunswick has an interesting history of election results which challenge the Westminster system to its limits. In 1987, for instance, the Liberals, who had been in the opposition for 20 years, won all 58 seats, leaving the parliament without an official opposition.

I believe the eventual arrangement used was that the backbenchers acted as the “opposition” and asked questions of the ministers during question time without notice, and the PCs were allowed to submit written questions.